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CHAPTER IV

CONSTITUTIONAL AND LEGISLATIVE PROVISIONS

RELATING TO THE DISABLED

4.1. Constitutional Provisions

The framers of the Constitution of India seemed to have been aware of the

problems of the weaker sections of the society and the disabled persons. Ensuring

social and economic equality and justice also would require that some constitutional

provisions should be made for the physically and mentally disabled. We find that such

provisions have indeed, been made which are found scattered in different parts of the

Constitution.

Although according to Entry 9 in the List II of Schedule 7 of the Constitution,

the subject of 'Relief to the disabled and unemployable' is the responsibility of the State

Governments, in practice, the Central Government also has a major role to play in, this

field. The Ministry of Welfare has been identified as the nodal Ministry by the

Government for the welfare of the disabled.1 A brief survey of the constitutional and

legislative provisions would enable us to have an idea of the concern shown by the

Constitution-makers and different governments towards the disabled ever since the

establishment of Indian Republic. Some such provisions which have been could have

been and can be utilized for the upliftment of the disabled, are reproduced below.

(a) The Preamble, providing the very wide ambit, promises: We, the people of

India, having solemnly resolved to secure Justice, social, economic and

political, Equality of status and opportunity and fraternity assuring the dignity

of the individual enact and give to ourselves this Constitution.2

1 Government of India (1994): National Council For the Handicapped Welfare, Ministry of

Welfare, Vigyan Bhavan, New Delhi, on 21st September at p. 1. 2 M.P. Jain (2009): Constitutional Law of India, universal publications, New Delhi, at p. 89.

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(b) The State shall not deny to any person equality before the law or the equal

protection of laws within the territory of India.3

(c) Nothing in this (Article 15) shall prevent the State from making any special

provision for the advancement of any socially and educationally backward classes

of citizens.4

(d) Nothing in this (Article 16) shall prevent the state from making any provision for

the reservation of appointments or posts in favor of any backward class of citizens

which, in the opinion of the State, is not adequately represented in the services

under' the State.5

(e) No person shall be deprived of his life or personal liberty except according to

procedure established by law.6

Though the fundamental rights listed above, in a way, do not have a specific

mention of the physically handicapped or disabled, yet they do pertain to the socially,

economically and educationally backward class of people. But the Ministry of Social

Welfare has already recommended that the disabled be treated equal to women and other

weaker sections of the community.7 The fundamental rights give more emphasis on

political equality and justice. It is the Directive Principles of State Policy, which become

more relevant while bringing about social and economic equality and justice which should

be the main concern of the State and the society when it comes to doing something for the

welfare and rehabilitation of the disabled. Directive principles of State Policy can be used

as guidelines by the governments from time to time to undo injustice and step-motherly

treatment meted out to this hapless and helpless section of Indian society for centuries.

Some of the Directive Principles of State Policy which pertain to and can be a guiding

spirit for the amelioration of the conditions of the disabled are reproduced below:

3 Article 14

4 Article 15 (4)

5 Article 16 (4)

6 Article 21

7 Government of India (1994): The Persons with Disabilities ( Security and Rehabilitation) Bill, All

poverty alleviation programmes of the Central and State Governments or any other scheme for the

benefit of women or other weaker sections of the community shall be equally applicable to persons

with disabilities.", Ministry of Welfare.

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(i) The provisions contained in the Directive Principles of State Policy8 shall not be

enforceable by any court, but the principles therein laid down are nevertheless

fundamental in the governance of the country and it shall be the duty of the State

to apply these principles in making laws.9

(ii) The State shall strive to promote the welfare of the people by securing and

protecting as effectively as it may, a social order in which justice, social, economic

and political shall inform all the institutions of the national life.10

(iii) The State shall, in particular, strive to minimize the inequalities in income, and to

Endeavour to eliminate inequalities in status; facilities and opportunities, not only

amongst individuals but also amongst groups of people residing in different areas

or engaged in different vocations.11

(iv) The State, in particular, shall direct its policy towards securing:12

That the ownership and control of the material resources of the community are so

distributed as best to sub serve the common good; That the operation of the

economic system does not result in the concentration of wealth and means of

production to the common detriment; that the health and strength of workers, men

and women, and the tender age of children are not abused and that citizens are not

forced by economic necessity to enter a vocation unsuited to their age or strength;

(v) The State shall, within the limits of its economic capacity and development, make

effective provisions for securing the right to work, to education and to public

assistance in cases of unemployment, old age, sickness and disablement, and in

other cases of undeserved want.13

(vi) The State shall promote with special care the educational and economic interests

of the weaker sections of the people and shall protect them from social injustice

and all forms of exploitation.14

8 Part IV of the Constitution of India.

9 Article 37

10 Article 38 (1)

11 Article 38 (2)

12 See clauses (b), (c) and (e) of Article 39

13 Article 41

14 Article 4

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The word "justice" has different meanings for different disciplines. For example,

the great Greek philosopher, Plato regarded justice as principle of well- adjusted social life

witnessing an ideally harmonious combination of the three elements of human personality

with three corresponding classes of his perfect stage. Different from this, in the realistic

worlds of politics and law, justice is taken as a harmonious reconciliation of the conduct of

the individual with the general good of the community.15

True that man is a selfish

creature, it is required that his conduct must be in tune with the well-being of the people as

a whole. Thus the essence of justice “is the attainment of the common good as

distinguished from the good of the individuals or even the majority of them.”16

Indian

Constitution professes to secure to all its citizens justice, social, economic and political,

even though the form of government prescribed by the Constitution is a majority

government, which lies at the foundation of the representative system.17

The important notable thing about the use of the word 'justice' in Indian

Constitution is that it has three distinct forms social, economic and political, social justice

is the sine qua non of a welfare state in as much as it prohibits discrimination on any

artificial ground, it also prohibits forces creating artificial social ground, it also prohibits

forces creating artificial social barriers like those of untouchability. As such, social justice

demands equality along with liberty. In a country like India, it is required that the State

must make concerted efforts to improve the lot of the downtrodden and weaker sections of

the people. The area of social justice widens itself as to cover the economic domain of a

people‟s life for the obvious reason that it demands non-exploitation of the working class.

Economic justice is virtually a corollary to the social justice. It means non-

discrimination between man and man on the basis of economic values. It also implies

adequate payment for equal work for all.

If we have a look at the root of the rule of law, we find that law is the means, and

justice, the end, as James Madison, put it: Justice is the end of government. It is the end

15

J. C. Johari (1976): Indian Government and Politics, Vishal Publications, New Delhi, at p. 146. 16

D.D. Basu (2003): Commentary on the Constitution of India, Vol.5, IV Ed., Prentice Hall of India

Pvt. Ltd., Delhi at p. 71. 17

Ibid., at p 66

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of civil society. It ever has been and ever will be pursued until it is obtained or until

liberty is lost in the pursuit.18

What is justice? To render to each his due to the blind man his sight, to the dumb

his speech, to the deaf his hearing, to the retarded or deprived, restoration of impairment

or absence of limbs or faculty.19

Let this art and right be materialized in some measure for every disabled one to

feel the warmth of life. Sans a human order of rehabilitation for the disabled persons, the

rule of law, even if constitutionally sanctified, will be but the opium of the people.20

The Preamble includes the term equality and specifies its dimensions In respect of

status and opportunity. The equality of status is provided by the prohibition of artificial

restrictions on the grounds of religion, race, sex, color, place of residence and the like. It

is supplemented by the prohibition of untouchability and by the abolition of titles. At the

same time equality of opportunity is provided by the guarantee of rule of law signifying

equality before law and nondiscrimination in matters of public appointments and

employment.

A great principle of the "Declaration of the Rights of Men and Citizens" as

adopted by the authors of the French Revolution is thus incorporated into the body of

constitution which says:

"Men are free and remain free and equal in rights. Law is the expression of the general

will. It must be the same for all, whether it protects or punishes. All citizens, being equal

in its eyes, are equally eligible to all public dignities, places and employments, according

to their capabilities and without distinction than of their virtues and talents."21

The words "capabilities" and "talents" are very significant, if one has the intention

to do as much as possible for the welfare of the disabled. Justice Krishna lyer, a perceptive

thinker supports this view:

18

V.R. Krishna Iyer (1982): Law justice and the Disabled, Deep & Deep Publications, Delhi, at p. 42. 19

Iyer, Krishna, at p. 42. 20

Ibid. at p. 39 21

J.C. Johari, at p. 148

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"Rehabilitation is based on the philosophy that what a person is capable of doing is

of greater importance than that which he or she cannot do. It is an approach to life

based on the maximum of all the abilities each person may possess”:22

The second last' ideal in the Preamble is 'fraternity' ensuring the dignity of

the individual. It seems to incorporate Article 1 of the Universal Declaration of the

Human Rights of 1948 saying that "All human beings are born free and equal in

dignity and rights. They are endowed with reason and conscience and should act

towards one another in a spirit of brotherhood." The phrase "dignity of the

individual" signifies that the Constitution, as K. M. Munshi said, "is an instrument

not only ensuring material betterment and maintaining a democratic set up, but also

recognizes that the personality of every individual is sacred.”

The directive contained in Article 38 provides that the State shall protect

the welfare of the people, as effectively as it may, a social order in which, justice

social, economic and political shall inform all the institutions of national life. With

this end in view, it is further stipulated that State shall direct its policy In securing

inter alia, the adequate means of livelihood for all citizens, equal pay for equal work

for all, provision for work and education for all the people, relief in case of

unemployment, old age, sickness and disablement and in other cases of undeserved

want, a living wage and decent conditions of work so as to ensure to the workers

sufficient Leisure and raising the standard of living and the improvement of public

health.

In the light of various directive principles of State Policy, also called the

"fundamental axioms of State Policy,”23

we may now examine some of the

enactments that are in consonance with the letter and spirit of these directives.

4.2. Legislation

A civilized and industrialized society requires social legislation in favor of

workers, tenants and loggers. Thus, the legislator is doing a work of equalization

22

Krishna Iyer, at p. 38 23

Constitution of India

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which is to improve the lot and prospects of the less fortunate classes. This becomes

all· the more necessary in a relatively less developed country like India. There is,

indeed, an immense need for social security measures in the country. An individual

with limited means cannot effectively provide for the risks to which he is exposed

while at work. Indian government has not been unaware of the needs and problems

faced by the workers. This becomes evident from the plethora of legislation brought

about by Parliament in this regard from time to time.

Regulatory jurisprudence has manifested itself in the form of labor laws

which are found scattered in various statutes passed at different times. This branch

of law has turned out to be a focal point for those seeking job able-bodied or

disabled persons.

In the following text, we shall discuss some of the pieces of labor legislation

and shall evaluate: whether they discriminate against the disabled secondly, whether

they make provision for the rehabilitation of the workers becoming disabled in the

course of employment; and thirdly, how far they have in fact, ameliorated the

conditions of the disabled workers.

A deep probe into the provisions of various labor laws in our country shows

that enactments like Trade Unions Act, 1926,24

Payment of Wages Act, 1936,25

the

24

The passing of the Trade Unions Act, 1926 is an important landmark in the history of trade union

movement in the country. Now there is hardly any category of workers which has no union of its own.

The importance of the trade unions lies in the fact that they encourage such collective bargaining as

ensures better terms and conditions of employment to the labour and at the same time endeavors for

maintenance of good relations between employer and employees. In pre-independence days, the increase

in cost of living, the country-wide political upsurge, the industrial unrest and economic discontent led to a

number of strikes by workers. It was on many occasions that these strikes were successful in getting the

demands of the workers fulfilled. The success in strikes and establishment of International Labour

Organization influenced the growth to the trade union movement in India. This Act provides a procedure

for the registration, obligations, rights and privileges of a trade union. For any benefit to the members of

the trade union, the Act does not discriminate against the disabled member worker. 25

The Preamble of the Act states that the object of the Act is to regulate the payment of wages to certain

classes of employed persons. It provides for a speedy and effective remedy to the employees in respect

of their claims arising out of illegal deductions or unjustified delay made in paying the wages to them.

This Act was passed to do away with the prevalent practice (in England) whereby workers were paid in

goods or other forms. The Act outlaws the old practice and provides that low paid workers must be

paid in cash and without any deductions other than those permissible by law. The Act as such deals

with employed persons and does not discriminate against the disabled workers.

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Industrial Employment: (Standing Orders) Act, 1946,26

The Industrial Disputes Act,

1947,27

The Minimum Wages Act, 1948,28

The Factories Act' 1948,29

The Employees'

Provident Funds and Family Pension Fund Act, 1952,30

The Maternity Benefit Act,

1961,31

The Payment of Bonus Act, 196532

etc. enacted by the parliament are welfare

26

This Act provides for lying down of conditions of employment in industrial organization in a clear and

precise form. The preamble to the Act provides "Whereas it is expedient to require employers in industrial

establishments to define with sufficient precision the conditions of employment under them and to make

the said conditions known to the workmen employed by them, attempt is to have uniform service

conditions in each establishment. The Act provides for the framing of standing orders defining the

conditions of recruitment, discharge, disciplinary action, holidays, leave etc.

In all industrial establishments to which this Act applies. Model Standing Orders are appended to the Act

for guidance and adoption by the employer. As such while framing the Standing Orders, the disabled

workers are not discriminated against under the Act. 27

The object of the Act is to harmonize the relations between the employer and the employees and thereby

to restore and maintain industrial peace. The Object of the Act as laid down in the preamble of the Act is

to make provision for the investigation and peaceful settlement of the industrial disputes. The Act is a

progressive measure of social legislation aiming at the amelioration of the conditions of the workmen in

industry by preventing illegal strikes and lock-outs, providing relief to workmen in the matter of lay-off,

retrenchment and closure of an undertaking and collective bargaining. The statute deals with the situation

arising after employment and does not make any distinction between classes of workmen depending upon

their physical attributes. Hence it bears no discrimination between able and disabled employees. 28

The demand supply formula determines the level of wages payable to workers in a free competitive

market. The Indian labour class, being illiterate, poor, and non-organized, is not well equipped to protect

its interests particularly, when the supply of the labour is always in excess of the demand in the market.

The Minimum Wages Act, 1936 was enacted to prevent exploitation of the workers and for this purpose

is it aims at fixation of minimum wages which the employer must pay. In order to fulfill this object of

fixing minimum wages, the government appoints area-wise committees and advisory boards and after

considering their advice along with the representations from affected public, the minimum wages are

fixed. The government enjoys the power to include or exclude any industry from the schedule for the

application of this Act. Apparently the disabled are not discriminated by the scheme of the Act. 29

The Act was passed to consolidate and amend the law regulating labour in factories. It was primarily to

protect workers from being subject to unduly long hours of bodily strain and manual labour. The Act tries

to secure for the workers employment conditions conducive to their health and safety. In order to obtain

the information necessary to ensure that objects are carried out, the local governments are empowered to

appoint inspectors to call for returns and to see that the prescribed registers are duly kept. In laying down

the various measures for the welfare of the workers of the Act nowhere discriminates between the able

and disabled worker. 30

This fact is meant to institute and administer funds for the employees in factories and other establishments

so as to make some provisions for the future of the industrial worker after he retires or for his dependants

in case of his death. The government frames the scheme applicable to specified scheduled industries. The

principal duty is laid upon the employer to put the Provident Fund Scheme into operation and to make

contribution of both the employees' and employer's share to the fund, then and there and deduct the

employees' share from their wages. The Central and State Boards administer the fund with the help of

other officers. The government is empowered, under the Act, to exempt or to alter and amend the

Schedule. The Act is applicable to employees irrespective of their physical ability. It does not discriminate

against the disabled persons. 31

The Maternity Benefit Act, 1961 was passed to regulate the employment of women in certain

establishments for certain periods before and after child birth and to provide for maternity benefit and

certain other benefits. This Act is the most important enactment dealing with the women working in

factories, mines, plantations and other industrial establishments. This Act and two other laws on the

subject, viz., the Mines Maternity Benefit Act, 1941 and the Plantations Labour Act, 1951 (which also

provide similar benefits to women workers) do not in anywhere discriminate between able and disabled

women employees.

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oriented and bear no bias towards the par disabled persons. There are some other

miscellaneous labor laws33

dealing with rules of employment, leaves, collection of

statistics, welfare and social insurance schemes, standards and equipment for work

place, provisions for ventilation, drinking water and lavatories etc. These laws, prima

facie do not discriminate between the 'able-bodied' and 'disabled' persons. There are

two notable laws, namely, The Workmen's Compensation Act, 1923 and, The

Employees' State Insurance Act, 1948, where victims of the disability are paid

compensation and attempt at rehabilitating the disabled workers and hence are special

subject of our study. Along with these a couple of other enactments which need special

attention are The Apprentices Act, 1961; The Income Tax Act, 1961 and The Motor

Vehicles Act, 1988.

4.3. The Workmen's Compensation Act, 1923

The Workmen's34

Compensation Act, 192335

imposes an obligation upon

employers to pay compensation to workers for accidents (resulting into death or

disablement) arising out of and in the course of employment. Compensation is provided

for temporary as well as permanent disablement and also for partia136

or tota137

32

This Act is intended for a comprehensive legislative determination regarding the paying of bonus to

workers by the concerned industrial houses. The bonus is supposed to be paid out of the surplus left after

the prior charges of the industry have been met with. The concept of social justice, too, provides the base

for the claim for bonus. It is supposed to fill in the gap between the living wages and actual wages and

could be linked with productivity. It might also be called as deferred wages. Whatever be its :real nature,

it is far from being arbitrary or discriminatory towards the disabled and affects all workers: 33

Children (Pledging of Labour) Act, 1933; Indian Labour Act, 1934; Employment of Children Act, 1938;

Mica Mines Labour Welfare Fund Act, 1946; Coal Mines Labour Welfare Fund Act, 1947; Dock

Workers (Regulation of Employment) Act, 1948L Plantation Labour Act, 1951; Mines Act, 1952;

Collection of Statistics Act, 1953; Merchant Shipping Act, 1958; Employment Exchanges (Compulsory

Notification of Vacancies) Act, 1959; Motor Transport Workers Act, 1961; Bidi Cigar Workers

(Conditions of Employment) Act, 1961; Contract Labour (Regulation and Abolition) Act, 1970; Ore

Mines and Manganese Ore Labour Welfare Cess Act, 1976, The above-listed Acts protect the various

interests of the workers exposed to different industrial hazards. These Acts deal with conditions of

employment, welfare fund for the workers, their leave and social insurance, collection of statistics etc.

Some of them pertain to employment of children and young persons, others promise drinking water,

ventilation and equipment for work place. All these Acts apply equally - both to able and disabled

workers and hence are not discriminating towards disabled persons. 34

The Act was framed with a view to provide for compensation to workmen disabled/incapacitated by an

injury from accident arising out of and in the course of employment. Rapid growth of industry with all its

attendant complexities, increasing use of modern complicated machinery and consequent danger to the

workmen along with their poor financial position to bear the cost of injury, and the awakening on the part

of workers in the form of Trade Unions, were the reasons which compelled the initiation of the Bill. It

was based on the philosophy that the cost of the product should bear the blood of the workmen. 35

Act No.8 of 1923 36

Section2(1)(g)

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disablement. The liability of the employer to pay compensation is dependent upon the

following four conditions:

(1) Personal injury to the workman;

(2) such injury must have been caused by an accident;

(3) The accident must have arisen out of and in the course of employment; and

(4) The injury must have resulted either in death of the workman or in his total or

partial disablement for a period exceeding three days.

However, the employer shall not be liable to pay compensation in the following

cases:38

(1) If the injury did not result in total, or partial disablement for a period exceeding

three days;

(2) if injury does not result in death of the workman39

but causes him disablement,

partial or total, and the employer can prove:

The workman was at the time of accident under the influence of drinks or drug;

That the workman willfully disobeyed an order40

expressly given by the

employer or a rule expressly framed for the purpose of safety of workmen; and

The workman having known that certain safety- grounds or safety devices are

specifically provided for the purpose of securing the safety of workman, willfully

disregarded or removed the same.

(1) Accident: The expression 'accident' used in Section 3 has not been defined in the Act.

But without any controversy, we can say that the term 'accident' means some

unexpected event happening without design i. e. an unlooked for mishap or untoward

37

Section 2 (1): The combined effect of these two provisions defining partial and total disablement

respectively, is that if the injury has incapacitated the workmen from every employment which he

was capable of undertaking at the time of accident then it is permanent or total and if he is

incapacitated merely from a particular employment in which he was at the time of the accident

resulting in disablement, then it is temporary or partial. 38

Proviso (b) to Section 3 (1). 39

Bhurangya Coal Co. Ltd. v. Sahebj an Mian AIR 1956 Pat. 299 40

Chaitram v. Steel Authority of India Ltd. Bihar (1991) II Lab.L.J.144 (M.P.) and Arya Muni v.

Union of India, (1965) I Lab.L.J. 24.

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event. The basic and indispensable ingredient of the expression 'accident' is

unexpected. Although an accident means a particular occurrence which does happen

at a time at some place but the victim i.e., the workman may not be able to locate it

exactly. It is not necessary, as well, for him to locate it with exactness. There would

be cases, where a series of tiny accidents, each producing some unidentifiable results

and operating cumulatively to produce the final condition of injury constitute

together an accident within the meaning of this section.41

(2) Arising out of and in the Course of Employment: The most essential requirement

for compensation under Section 3 is that an accident which causes personal injury to

the workman must 'arise out of and in the course of employment. But this expression

too, has not been defined as such by the Act but its meaning has been settled by a

series of judgments42

on the issue. The expression 'arising out of' suggests the cause

of accident. It applies to employment, as such, to its nature, its conditions, its

obligations and its incidents. The question that should be considered was the act

which resulted in the injury so outside the scope of the duties with which the

workman was entrusted by his employer so as to/say that the accident did not arise

out of his employment? The expression 'in the course of' points out to the place and

circumstances under which the accident took place and the time when it occurred.

It is not limited to the period of actual labor. It means during the currency of

employment. A casual connection or association between the injury by accident and

employment is necessary. There may not be a direct connection between the injury

caused by an accident and the employment of the workman. The distinction' between

'arising out of and 'arising in the course of' employment as pointed out by Bombay

High Court43

is that the latter suggests the point of time, i.e., the injury must be caused

41

Jaybharat Saw Mill v. Babu Lal Ambalal Sodh Parmar (1992) II Lab. L.J. 186 (Gujarat) 42

Trustees Port of Bombay v. Yamunabai AIR 1952 Bom. 382; Janki Ammal v. Civil Engg.

Highways, Kazhikode (1956) II Lab. L.J. 233; Smt. Koduri v. Polongi Atchamma, (1969) Lab. L.J.

1415 (A.P.); Chairman Madras Trust v. Kamala AIR 1979 Mad. 386; Sri Jayaram Motor Service v.

Pitchammal (1982) - II Lab. L.J.149 (Madras); Superintending Engineer Parambikulam Aliar proj et

Pollachi v.Andammal, (1983) II Lab. L.J.326 (Mad.); Devshi Bhanji Khona v.Mary Burno Director

(T&M) D.N.K. project v. Smt.D .Buchitalli (1989) I Lab. L.J.259 (Orissa); Raj Dulari v.

Superintending Engineer and another (1989) II Lab. L.J. (P&H); Zubeda Bano and others,

Maharashtra S.R.T. Corpn. & others (1991) 1 Lab. L.J.66 (Bombay); New India Assurance Co.Ltd.

V.R.Shridhara and another. (1992) I Lab. L.J. 558 (Karnataka ) 43

Trustees, Port of Bombay v. Yamunabai, AIR 1952 Bom.382.

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during currency of employment and the former conveys the idea that there must be

some sort of connection between the employment and the injury caused to a workman

as a result of accident.

(3) Quantum of Compensation

Once it is proved by the claimant that the injury is by an accident arising out44

of and

in the course of employment, the court proceeds further for fixing the quantum of

compensation to be paid by the employer to the disabled worker (or his dependants in case of

his death). The Workmen's Compensation Act gives clear guidelines in assessing the

quantum of compensation. It shall be as follows:

Where injury results

into death

an amount equal to forty percent of monthly wages of the

deceased workman multiplied by the relevant factor;45

or an

amount of twenty thousand rupees whichever is more;

Where permanent

total disablement

results from the

injury

an amount equal to fifty percent of the monthly wages of the

injured workman multiplier by the relevant factor;46

or an

amount of twenty four thousand rupees, whichever is more;

Where permanent

(i) partial

disablement results

from the injury

in the case of an injury specified in Part II of Schedule I, such

percentage of the compensation which would have been

payable in the case of permanent total disablement as is

specified, therein as being the percentage of the loss of earning

capacity caused by the injury, and in the case of an injury not

specified in Schedule I, such percentage of the compensation

payable in the case of permanent total disablement as is

proportionate to the loss of earning capacity (as assessed by the

qualified medical practitioner) permanently caused by the

injury.

44

Section 4, Workmen's Compensation Act, 1923. 45

Explanation I to Section 4 (1) explains 'relevant factor' as the factor specified in the second column

of Schedule IV against the entry in the first column of that Schedule specifying the number of years

which are the same as the completed years of the age of the workman on his first birthday

immediately preceding the date on which the compensation fell due. 46

Ibid., at p.53

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Where temporary

disablement, total or

partial, results from

the injury.

a half-monthly payment of the sum equivalent to twenty-five

percent of monthly wages of the workman, to be paid in

accordance with the provisions of sub-section (2) of the Section

4.

Sub-section (2) of section 4 reads as follows:

The half-monthly payment referred to in clause (d) of sub-section (1) shall be

payable on the sixteenth day-

(1) From the date of disablement lasts for a period eight days or more, or where

such of twenty-

(2) After the expiry of a waiting period of three days from the date of disablement

where such disablement lasts for a period of less than twenty-eight days; and

thereafter half monthly during the disablement or during a period of five years,

whichever period is shorter;

Provided that-

(a) There shall be deducted from any lump-sum or half-monthly payments to which

the workman is entitled, the amount of any payment or allowance which the

workman has received from the employer by way of compensation during the

period of disablement prior to the receipt of such lump-sum or the first half-

monthly payment, as the case may be; and

(b) No half-monthly shall in any case exceed the amount, if any, by which half the

amount of the monthly wages of the workman before the accident exceeds half

the amount of such wages which he is earning after the accident.

(4) Compensation not to be assigned, attached or charged

After assessing the amount of compensation payable to the disabled workman,

the Act intended to give further protection to the workman, from being deprived of the

benefit of compensation. Compensation granted to a workman cannot be assigned,

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charged or attached by any process of law.47

It cannot be passed to another person by

operation of law. No claim can be passed to another person by operation of law. No

claim can be set-off against the same. Thus the Act makes it imperative that the amount

of compensation is to be paid to the workman entitled for it without any delay or

difficulties. But the dependants of a deceased workman have statutory right, to receive

the compensation in case of death of the workman concerned.

Conditions precedent to the award of compensation: The workmen's

compensation scheme provides for payment of cash benefits in case of-

(a) Temporary total disablement,48

(b) Permanent total disablement,49

(c) Temporary partial disablement,50

(d) Permanent partial disablement,51

(e) Death,52

and

(f) Occupational diseases.

Before compensation can be paid, certain conditions must be fulfilled:

(a) The injury, 'total' or 'partial' disablement must exceed 3 days.53

(b) Notice of the accident54

has to be given to the employer as soon as practicable

after the occurrence of the accident. No hard and fast rule can be laid down in

regard to what is meant by “as soon as practicable”. It depends upon the

individual circumstances. Unless, such notice is given, no claim for

compensation is entertained in the Act.55

However, a claim for compensation

shall not be turned down for want of defect or irregularity in the notice. The

object of giving such notice is to enable the employer to check the fact of the

accident, having occurred to the workman in the course of his employment and

47

Section 9, the Workmen's Compensation Act, 1923 48

Sub-section (1) (d) Section 4. 49

Sub-section (1) (b) Section 4. 50

Sub- section (1) (a) Section 4 51

Sub-section (1) (c) Section 4 52

Sub-section (1) (a) Section 4 53

Section 3 (1) (a) 54

Section 10 55

Ibid., at p.89

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also to enable the employer to take such steps as he may think fit to mitigate the

consequences of the accident.56

(c) Claim for compensation can be preferred before the Commissioner within two years

of the occurrence of the accident. However, the delay in filing the claim can be

condoned if sufficient cause is proved by the claimant.57

(d) The claimant must; not have instituted in a civil court a suit for damages in respect

of the injury against the employer or any other person for which he could have

claimed compensation under the Act.58

4.3.1. Workman’s Evaluation Compensation to Workman's Restoration of the

Workmen's Compensation Act, 1923

An analysis of the provisions discussed in the fore-going text reveals that the

Workmen's Compensation Act, 1923 is intended to ameliorate the conditions of

workers employed in industries in the event of an accident arising out of and in the

course of employment. Enactment of this legislation by almost all the nations is an

acknowledgement of the principle that in this industrial age of dust, fumes and

accidents, the society must bear the cost of necessary human wear and tear. The

society, as a whole, must share the responsibility to repair the effects of individual

misfortune as a result of industrial accidents.59

Workmen's compensation (Law) is

not to be thought of as merely a way of disposing of a private quarrel between

56

Ahmedabad Victoria Iron Works Ltd. v. Maganlal Keshavlal Panchal, A.I.R. 1941 Bom. 296. 57

Section 10: Limitation Act in such cases cannot be crystallized into a rigid rule of law. The court is

to be guided in each case on its merits and with a view to furthering ends to justice: Surendra Mohan

v. Mohendra Nath, A.I.R. 1933 Cal.21; Halemabai v. Ardeshir, A.I.R. 1933 Born. 197; Pochiar and

Co. v. Nagabhushanam, AIR 1966 A.P.99; Delay in filing the claim after the statutory period on the

ground of illness or continued medical treatment was excused in B.M.& Engineering Factory v.

Bahadur Singh, A.I.R.1955 All.182; The public authorities would desist from raising pleas of delay

irrespective of the margin of delay and avoid defending a claim on technical plea of delay or

limitation avoiding an order on merits: Trustees of Port of Bombay v. Premier Automobiles,

A.I.R.1974 S.C.923. 58

Sections 3 (5) and 19 (2): The effect of these provisions is to impose a bar on the recovery by the

workman of compensation twice for the same injury. The workman has an option either to go to civil

court or claim compensation under the Act. It is not only a success to a claim that bars a subsequent

claim to compensation but if a workman has brought even an unsuccessful claim against the

employer; he would be debarred from making any alternative claim in respect of the same injury in

Kanta Mills v. Bombay State A.I.R.1965 S.C.1941 Oriental Fire and General Finlay and Co. v.

Union of India. A.I.R. 1975 A.P. 222 Trustees of the Port of Madras v. Bombay Co. (Pvt.) A.I.R.

1967 Mad.318. 59

K.L. Bhatia (1986): Administration of Workmen's Compensation Law, Deep & Deep Publication,

Delhi, at p.36.

-99-

employer and about a personal injury60

but should include preventive and restorative

services, so that after proper treatment and training, the workman is in a position to

undertake fruitful and productive work.61

As far back as 1930, Commissioner Duxbury of Minnesota, formerly

President of International Association of Industrial Accident Boards and

Commissions, in his address to the national convention of that body, declared that

the object of the compensation law was "the economic rehabilitation of the

employee.”62

In a similar scholarly analysis of the workmen's compensation laws

before 1950 meeting of the same group, Marshall Dawson indicated that such

"economic rehabilitation" presupposed the employee's physical restoration63

. He

stated further that:

Attention is again being directed to rehabilitation as the goal of workmen's

compensation - the word is used in its broad meaning as contrasting with

'indemnity. Success in rehabilitation is necessarily the culmination of the

performance of the workmen's compensation system as a whole.64

The latter meeting of the Association65

to consider the role of compensation

administrators concluded:

Rehabilitation is the end results of the compensation process. If we, as

compensation administrators, fail to realize this important fundamental and are

satisfied merely to sit back and dole out to the injured workman a certain percentage

of his wage then the entire compensation process becomes archaic and outmoded.

Assisting and helping the injured workman to regain his former physical fitness

60

Arthur Larson (1961) "Changing Concepts in Workmen's Compensation", Nascca Law journal,

Administration of Workmen's Compensation Law at p. 36 and also J.N. Mallick (1961):

"Workmen's Compensation Act and Some Problems of Procedure", Journal of Indian Law Institute

pp. 131-32 at p. 131. 61

Veer Singh (1984): “Industrial Employment Injuries: A Functional Study with Special Reference

to India”, Ph.D. thesis, Panjab University, Chandigarh, at p. 211. 62

Bureau of Labor Statistics (1931): “Proceedings of 1930 Convention of International Association

of Industrial Accident Boards and Commissions”, Bulletin no. 536 Washington, at p. 129. 63

Bureau of Labor Standards (1950): “Proceedings of 36th Annual Convention of International

Association of Industrial Accident Boards and Commissions”, Bulletin No. 142, Washington pp.

61-62 at p.60. 64

Ibid., at p. 154 65

International Association of Industrial Accident Boards and Commissions

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following injury or industrial disease, in order that he may again become a

productive, useful member of society, is, in our considered opinion the

responsibility of compensation administrators.66

A rehabilitation committee, set up by the Association, in its report at the

1956 meeting of the Committee stated:

We can never compensate, in a monetary sense, for the self - respect and self

- reliance they have lost if their injury deprives them of the opportunity to be

productive workers meeting their responsibilities to their families and community.

We can possibly restore them physically and vocationally if we bring all out

resources and recently developed techniques and 'attitudes to bear on the problem.67

Arthur Larson, an authority on the subject of compensation to the injured

workmen, considers rehabilitation of the workman as a component and logical

extension of the compensation process. He observes that industrial accident had two

major phases: Prevention and Cure. The spotlight now is on a third: Rehabilitation.

Restitution is the proper remedy when money damages will not restore something

that is unique.68

Arthur Larson emphasized the need for a complete reorientation of the

basic approach to workman's compensation insurance and even suggested that the

name "workmen's compensation" be changed to workmen's restoration". His idea

was· to place the principal emphasis on medical care and rehabilitation as a means

to restore an injured worker to full work capacity rather than limiting

administrative concern to indemnity benefits.69

The Somers book, one of the most definitive Works in the field of

workmen's compensation, considers rehabilitation as of great of the system of

66

Bureau of Labor Standards (1953): “Proceedings of 38th Annual Convention of International

Association of Industrial Accident Boards and Commissions”, Bulletin No. 167, Washington, at p.

83. 67

Bureau of Labor Standards (1956): “Proceedings of 42nd Annual Convention of the International

Association of the Industrial Accident Boards and Commissions”, Bulletin No.192, Washington,

1956 at 219. 68

Arthur Larson (1968): Law of Workmen’s Compensation, Vol.2 pp. 260-61 at p. 260 and Veer

Singh: Industrial Employment Injuries, Supra, note 61 at p. 211. 69

Id.

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significance In the further progress noting that "rehabilitation is obviously in the

interest of workmen's compensation. After both the injured worker and the

employer”, 70

the book goes on to point out that:

Successful orientation towards this new goal will require many difficult legislative

and administrative adjustments.... The strongest potential asset of the

compensation programme is that it can make possible a cohesive and continuous

medical and maintenance program for the injured worker leading to maximum

physical adjustment and a return to economic productivity at highest capacity.

This is the job of such conspicuous importance that a program which, if affected

efficiently, would be hailed and unchallenged. Workmen's compensation has

unique opportunity to achieve this goal.71

The idea of converting disabled worker from welfare recipients to

productive wage-earners, tax-paying citizens dates back to the days of World War

I from where it was picked up by International Labor Organization which showed

a keen interest in the rehabilitation of the disabled worker. In order to assess the

problem, committees of experts were set up, reports were prepared and

published.72

The various aspects of the problem were discussed suggested that monetary

compensation alone does not serve the purpose. The disabled worker needs to be

trained in such a way that he becomes financially independent. The physical

rehabilitation cannot be separated from the vocational rehabilitation. The experts

in medical rehabilitation should treat the disabled worker in such a way that the

subsequent vocational rehabilitation to him is facilitated.

The Workmen's Compensation Act, 1923 has been on the statute book for

more than half a century. The main object of this welfare legislation has been to

70

H.M. Somers (1974): Workmen's Compensation Prevention: Insurance and Rehabilitation of

Occupational Disability, John Wiley & Sons, New York, at p. 275. 71

Id. 72

International Labor Office (1921): The Compulsory Employment of Disabled Men, Studies and

Reports, series NO.2, Geneva International Labor Office, The Training and Employment of Disabled

Persons. Preliminary Report, Montreal Studies and Reports, Series no. 7 (Geneva, 1945)

International Labor office International labour Code, 1951 (Geneva, 1952) International Labour

Office, The Vocational Training (Adults), Recommendation No. 88 (Geneva, 1950).

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compensate in terms of cash, a worker who, unfortunately, has been rendered

disabled because of some accident occurred while he was at work. No doubt, the

worker at this stage needs hard cash to get him treated and be physically

independent as far as possible. With the passage of time, he is out of the trauma

fully. It is at this stage that nearly all the disabled people prefer to earn their

livelihood rather than be dependent upon the lum-sum monetary compensation and

benefits which are soon squandered and the disabled man is left without money at

all. Hence he finds some other means, immoral or unlawful, to earn his livelihood.

The result is beggar or a bad boy.

It is with this background in mind that it is suggested that there should be

provision in the Act itself ensuring that disabled worker, subject to his limitations,

is trained to his capabilities, to get some suitable employment. "This would not only

be Lowering the compensation costs but also be beneficial to employers, employees

and the community.”73

The most effective method of controlling and reducing

disability is through a 'good medical care programme and good rehabilitation

service. By such a planned operation, a worker can be returned to the dignity of

self-support and to gain employment.74

The Workmen's Compensation law belongs to a category of legislation

designed to ameliorate the condition of the weaker section of the society. The fact

that the legislature has enacted a law to provide compensation to victims of

industrial accidents makes us often complacent that all is well. The statutory and

decisional materials create the impression that a victim of industrial accident is

adequately protected by the legal system and he or his dependent is bound to get

compensation in the event of his disability or death.75

From the discussion on various provisions and aspects of the Act in the

foregoing text, we come to the conclusion that the Workmen's Compensation Act,

73

Albany M. Callahan (1957): Report of Costs: Operations and Procedures under the Workmen's

Compensation Law of the State, New York, Governor of the State of New York by the Moreland

Act Commissioner, Jan 28, at p. 25 and W. Scott(1958): Rehabilitation: A Community Challenge

at p. 141. 74

W. Scott Allan (1987): Rehabilitation, at p. 168. 75

K.L. Bhatia (1988): Administration of Workmen's Compensation Law, Supra, note 59 at p. 56.

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1923 is intended' simply to compensate the persons injured in the process of

production. The scope is altogether different from that of normal life.76

The Act

makes provision neither for the prevention77

of industrial accidents nor

rehabilitation78

of the victims. The amount paid as compensation is too meager to

set off the handicaps caused by the disabilities incurred, nonetheless the law keeps it

open for the injured to go to a court of law to demand by way of a civil suit. The

torments and hardships of civil litigation are numerous to enumerate here. The fact

remains that hardly any civil litigation worth the name on this count exists in India.

The disabled person, who is surrounded by physical and financial hardships, finds

it‟s convenient to shun this course of action.79

4.4. The Employees' State Insurance Act, 1948.

The need for social security schemes was felt badly after World War II.

Social security to the workers of an industry can be provided by a self-balancing

scheme of Social assistance and social insurance or a combination of the two

methods. The Workmen's Compensation Act, 1923 is the first legislation of this

type towards social security, which depends upon a number of factors viz.,

population, economic resources, standard of living, and availability of technical

experts and development of industry. The Act of 1923 though designed to

ameliorate the condition of the labor was in nature of social assistance and not

social insurance. The Employees' State Insurance Act, 1948 was the first piece of

social security enactment adopted in India. It aims at bringing about social and

economic justice to the poor and weaker class of the land.

The relevant provisions of the Act dealing with the rehabilitation of the

disabled worker are discussed below:

76

Rama Mani (1988): The Physically Handicapped in India: Policy And Programme, Ashish

Publishing House, Delhi, at p. 50. 77

There is no possible way of compensating adequately the disabled man or woman whose injury

could have been avoided 98 per cent of job injuries are probably preventable, Somers and Somers,

Workmen's Compensation Prevention, Insurance and Rehabilitation of Occupational Disability,

supra, note 70 at 197. 78

H.H. Kessler (1953): “Rehabilitation of the Physically Handicapped”, Workmen's Compensation

laws fall short of this goal by failing to include restoration of the worker to his former social and

economic position, Columbia University Press, New York, at p. 46. 79

Mani Rama (1999): The Physically Handicapped in India, supra note 76 at p. 50.

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4.4.1. Employment Injury

The following are the ingredients of the employment injury80

:

(a) The injury must be personal to an employee.

(b) The injury must be caused by an

(i) Accident;81

or

(ii) Occupational disease

(c) The accident must arise out of and in the course of employment.82

(d) The employment must be insurable.83

4.4.2. Establishment of Employees' State Insurance Corporation

The Act provides that the Employee's State Insurance Corporation84

shall be

established by the Central Government by notification in the official Gazette. The

corporation shall be established with effect from such date as may be notified by the

Government. The function of the Corporation is the administration of the Scheme of

Employee's State Insurance in accordance with the provisions of this Act.

Corporation‟s power to promote measures for health etc. of insured

persons.85

Section 19 of the Act empowers the Corporation to take steps for the benefit

and rehabilitation of the insured disabled workers. These measures permitted to be

taken by the Corporation are in addition to any benefit scheme specified in this Act.

The Section, provisional in nature, states. The Corporation may, in addition to the

scheme of benefits specified in the Act, promote measures for the improvement of the

health and welfare of insured persons and for the rehabilitation and re- employment of

80

Sub-section (8), Section 2. 81

The term 'accident' has discussed Workmen's Compensation 1923. 82

The meaning of the expression 'arising out of and in the course of employment' discussed under

the Workmen's Compensation Act, 1923 applies to this Act also. 83

Section 2(13-A) of the Act states that the expression Insurable Employment means an employment

in any factory or establishment to which this Act applies. 84

Section 3 85

Section 19

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insured persons who have been disabled or injured and may incur in respect of such

measures expenditure from the funds of the Corporation within such limits as may be

prescribed by the Central Government.86

4.4.3. Disablement Benefits: The purpose of the Employee's State Insurance Act87

is

to provide benefits as detailed in the Act particularly in Section 46, to the

insured' disabled persons. Any insured person shall be entitled to periodical

payments if

(a) he suffers from disablement;

(b) the disablement results from an employment injury; and

(c) He sustained the employment injury as an employee under conditions

mentioned in the Act.

The disablement benefit is payable only when the injury is duly certified by an

Insurance Medical Officer. Another section dealing with the details of the

disablement benefits is section 5188

of the Act. This section provides for the

payment of disablement benefit for -

(d) temporary disablement (which is payable only if it is for not less than three days

excluding the day of accident)

(e) permanent disablement, total or partial;

(f) The question of payment would be as provided in the First Schedule. In case of

permanent disablement total or partial - the payment may be for a limited period

or for life.

86

Ibid., at p. 109 87

Section 46 and 51 88

Section 51 reads as follows, Subject to the provisions of this Act and regulations, if any-

a person who sustains temporary disablement for not less than three days (excluding the day of

accident), shall be entitled to periodical payment for the period of such disablement in accordance

with the provisions of the First Schedule

a person who sustains permanent disablement, whether total or partial shall be entitled to periodical

payment for such, disablement in accordance with the provisions of First Schedule;

Provided that where permanent disablement, whether total or partial, has been assessed provisionally

for a limited period or finally, the benefit provided under this clause shall be payable for that limited

period or as the case may be, for life.

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(g) Disablement benefit is periodical payment to the insured person. It is paid on

account of disablement resulting from an employment injury sustained as an

employee under the Act.

4.4.3.1. Rate of Disablement Benefit:

The disablement benefit shall be payable to the insured person as follows89

:

(a) for temporary disablement at the full rate;

(b) for permanent total disablement at the full rate;

(c) for permanent partial disablement resulting from an injury specified in Part II of

the Second Schedule, at such percentage of the full rate which would have been

payable in case of permanent total disablement as specified in the said

Schedule as being the percentage of loss of earning capacity caused by that

injury;

(d) for permanent partial disablement result ting from an injury not specified in

Part II of the Second Schedule, at such percentage of the full ~ate payable in

the case of permanent total disablement as is proportionate to the loss of

earning capacity permanently caused by the injury;

When more than one injury are caused by the same accident, the rate of benefit

payable under clauses (c) and (d) shall be aggregated but not so In any case as

to exceed the full rate.90

(e) In cases of disablement not covered by clauses (a), (b), (c) and (d) at such rate

not exceeding the full rate as may be provided in the regulations.

4.4.3.2. Conditions Requisite for Getting Disablement Benefit

The claimants91

of disablement benefit have to observe the following conditions:

(a) Notice of accident: Every insured person who sustains personal injury caused

by accident arising out of and in the course of employment in a factory or an

89

Id. 90

First Schedule, Explanation to Para 7 (a) 91

Regulations 7, 65 and 66 and Section 64

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establishment shall give notice of such injury -either In writing or orally, as

soon as practicable after the happening of the accident92

Compliance of directions by the Corporation: Every claimant for and every

beneficiary in receipt of disablement benefit shall comply with every direction

given to him by the appropriate Regional Office which requires him either-

(b) to submit himself to medical examination by such medical authority as may be

appointed by that office for the purpose of determining the effect of the

relevant employment injury or the treatment appropriate to the relevant injury

or loss of faculty, or

(c) to attend any vocational training courses or industrial rehabilitation courses

provided by any institution maintained by any Government, local authority or

any public or private body recognized for the purpose by the Corporation and

considered appropriate by it in his case.93

4.4.3.3. Other conditions

The conditions listed below also pertain to claim94

of temporary disablement

benefit. However, such conditions are not be observed by the persons who are

entitled to benefit on account of permanent disablement:

(a) Such person shall remain under medical treatment at a dispensary, hospital,

clinic or other institution provided under the Act. He shall also carry out the

instructions given by the Medical Officer or medical attendant, in-charge

thereof;

(b) he shall not, while under treatment do anything which might retard or prejudice

his chances of recovery;

(c) he shall not leave the area in which medical treatment provided by the Act is

being given, without the permission of Medical Officer, medical attendant or

such other authority as may be specified in this behalf by regulations;

92

Regulation 65 93

Regulation 7 94

These conditions are enumerated in section 64

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(d) He shall also allow himself to be examined by any duly appointed medical

officer or other person authorized by the Corporation in this behalf.

4.4.3.4. Benefit not assignable or attachable

Various benefits are payable95

in the form of periodical payments under the Act.

Some of them are payable to the insured persons only, while others are payable to the

insured as well as to his family or dependents. The Act provides that none of these

benefits payable under this Act shall be liable to attachment or sale in execution of any

decree or order of any court96

Thus, the benefit is made inalienable and is exempt from

attachment, No execution can lie against such a sum.97

4.4.3.5. Persons not entitled to receive benefits in certain cases

Save as may be provided in the regulations98

, no person shall be entitled to

disablement benefit for temporary disablement on any day on which he works or

remains on leave or on a holiday in respect of which he receives wages or on any day

on which he remains on strike.

4.4.3.6. Benefits not to be combined

The act lays down a prohibition99

against receiving two benefits at a time. An

insured person shall not be entitled to receive for the same period the following

combinations of benefits simultaneously:

(i) Sickness benefit and disablement benefit for temporary disablement; or

(ii) Both maternity benefit and disablement benefit for temporary disablement. The

insured person entitled to more than one benefits shall have an option to choose

one of the two benefits.

95

Section 60 96

Ibid., at p. 65. 97

Union of India v. Hira Devi A.I.R. 1952 SC 227 98

Section 63 99

Section 65

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4.5. The Apprentices Act, 1961

In view of the rapid and large - scale industrial development100

of the

country, there is an increasing demand for the skilled craftsmen. Although, both in

public and private sector, certain establishments have been equipped to impart

training of skilled workers in a systematic manner, however, the majority in the

industry has been lacking in such programmes and arrangements. The result has

been deterioration in the quality and increase in the cost of production.

For a long time the Government has been concerned about the question of

undertaking legislation for regulating the training of apprentices in industry. The

government considered it necessary to utilize the facilities available for the training

of apprentices. Therefore, to ensure their training in accordance with the

programmes, standards and syllabi drawn up by expert bodies, the Apprentices Act

was enacted in the year 1961. The object of the Act is to meet an increasing demand

for skilled craftsmen, in the development of the country. The Act provides for the

regulation and control of training of apprentices in trade and for matters connected

therewith.101

According to the Act 102

a person shall not be qualified for being engaged as

an apprentice to undergo apprenticeship training in any designated trade, unless he -

(a) is not less than fourteen years of age, and

(b) Satisfies such standards of educational and physical fitness as may be

prescribed.

Different standards may be prescribed in relation to apprenticeship training

in different designated trades and for different categories of apprentices.103

In

exercise of this power the government has made Apprenticeship Rules, 1962104

100

Act No. 52 of 1961 101

S. N. Misra (1994): Labor and Industrial Laws, Central Law Publications, Allahabad, at p. 744. 102

Section 3 of the Apprentices Act, 1961 103

Ibid., at p. 44 104

Notification (1962): No. G.S.R., Aug.27, published in Gazette of India.

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laying down the minimum physical standards which an apprentice must satisfy.

These rules are prescribed In Schedule I and II respectively of said Rules.

Sub-clause (2) of Rule 4 of the Apprenticeship Rules, 1962 makes provision

for relaxation of the physical standards for physically handicapped persons.

4.5.1. Standard of Physical Fitness reads as follows:

(c) A person shall be eligible for being engaged as an apprentice if he satisfies the

minimum standards of physical fitness prescribed in Schedule II: provided that

a person who has undergone institutional training in a school or other institution

recognized by the National Councilor the All-India Councilor a statutory

University or a State Board of Technical Education and has passed the

examination or tests conducted by these bodies or is undergoing institutional

training in a school or institution so recognized or affiliated in order that he

may acquire a degree or diploma in engineering or technology or equivalent

qualification shall, if he has already undergone medical examination in

accordance with rules for the admission to the school or institution, be deemed

to have complied with the provisions of this rule.105

(d) Without prejudice to the generality of the foregoing provision, where a

physically handicapped person registered at any Employment Exchange is

declared either by the Medical Board attached to Special Employment

Exchange for the physically handicapped or the local Civil Surgeon where such

Medical Board has not been constituted to be physically fit for being engaged as

an apprentice in any of the designated trades under the Apprentices Act, 1961,

he may be engaged as an apprentice in that trade.

The above provision is simply an enabling one. It does not vest any right in the

physically handicapped person to claim to be engaged as an apprentice in the trade or

industry. Employer normally hesitates in engaging the physically handicapped persons

as apprentices believing that by their engagement the production would be affected

adversely and delayed too. We do not have any statistical data regarding their

105

Sub-clause-II of Rule 4 and Notification No.1538 dated September 28, 1966

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engagement in industrial training but certainly their number is not much. Situation can

improve for the disabled, if it is obligatory upon the employer to engage to some fixed

percentage, the physically handicapped persons as apprentices.

A critical appraisal of the provisions of the labour laws discussed in the

foregoing part of the chapter reveals that the problem or rehabilitation of the disabled is

not met with by them in an effective and comprehensive manner. Strictly speaking, the

two main laws (The Workmen's Compensation Act, 1923 and the Employees' State

Insurance Act, 1948) discussed here, cannot be said to be covering and rehabilitating

the disabled persons directly. And moreover, they become operative only when

misfortune renders an able-bodied person to be a disabled· one. The third law (The

Apprentices Act, 1961) in the series does touch the physically handicapped directly but

this, too, does not impose any obligation upon the employer nor does it lay down any

penalty if employer does not engage a physically handicapped person as an apprentice

in the trade or industry. Thus all these three laws have a limited application as they

cover only persons engaged in Industry. Disabled outside the Industry seem to have

been left to their own fate in absence of an appropriate legislation. It hardly needs

mention; therefore, that bringing about a proper legislation in this regard should get the

top priority. As compared to the advanced countries, India has lagged far behind.

4.6. The Motor Vehicles Act, 1988

This Act is an amended version of the Motor Vehicles, Act 1939106

which

consolidates the law relating to motor vehicles. The Act of 1988, inter alia, takes into

account the changes in the road transport technology, Pollution-control measures,

standards for transportation of hazardous and explosive materials, pattern of passenger

and freight movements, development of the road network in the country and

particularly the improved techniques in the motor vehicles management. The Act

provides mainly for the following matters, namely:

(a) rationalization of certain definitions with additions of certain new definitions of

new types of vehicles;

106

Act No. 59 of 1988

-112-

(b) stricter procedure relating to grant of driving licenses,; and the period of validity

thereof;

(c) laying down standards for the components and parts of motor vehicles;

(d) standards for anti-pollution control devices;

(e) provision for issuing fitness certificates of vehicles also by the authorized

testing stations;

(f) enabling provision for updating the system of registration marks;

(g) liberalized schemes for grant of All-India Tourist Permit as also National

Permits for goods carriages;

(h) maintenance of state registers for driving licenses and vehicle registration:

(i) Constitution of Road Safety Councils.

The Act, inter alia, defines permanent disablement, makes provision for

compensation for permanent disablement on the principle of no fault and facult,

resulting from an accident arising out of the use of vehicles and fixes the quantum

thereof. Such provisions of the Act are reproduced and discussed below:

4.6.1. Liability to pay compensation in certain cases on the principle of no fault

(a) Where death or permanent disablement of any person107

has resulted from an

accident arising out of the use of a motor vehicle the owner of the vehicle shall,

be liable to pay compensation in respect of such Disablement in accordance

with the provisions of this section.

(b) The amount of compensation which shall be payable under sub-section (1) in

respect of the permanent disablement of any person shall be a fixed sum of

twelve thousand rupees.

(c) In any claim for compensation under sub- section (1), the claimant shall not be

required to plead and establish that permanent disablement in respect of which

the claim has been made was due to any wrongful act or neglect or default of

the owner of the vehicle concerned or of any other person.

(d) A claim for compensation under sub-section (1), shall not be defeated by reason

of any wrongful act, neglect or default of the person in respect of whose

107

Section 140 of the Motor Vehicles Act 1988, The section corresponds to old section 92 -A of Motor

Vehicles Act 1939

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permanent disablement the claim has been made nor shall the quantum of

compensation recoverable in respect of such permanent disablement be reduced

on the basis of the share of such person in the responsibility for such permanent

disablement. Provisions as to other right to claim compensation for death or

permanent disablement.108

4.6.2. Provisions as to other right to claim compensation for death or permanent

disability

(a) The right to claim compensation under section 140 in respect of permanent

disablement of any person shall be in addition to any other right to claim

compensation in respect thereof under any provision of this Act or any other

law for the time being in force.

(b) A claim for compensation under section 140 in respect of permanent

disablement of any person shall be disposed of as expeditiously as possible and

where compensation is claimed in respect of such permanent disablement under

section 140 and also in pursuance of any right on the principle of fault, the

claim for compensation under section 140 shall be disposed of as aforesaid in

the first place.

(c) Notwithstanding anything contained in sub-section (1) where in respect of

permanent disablement of any person, the person liable to pay compensation

under section 140 is also liable to pay compensation in accordance with the

right on the principle of fault, the person so liable shall pay the first mentioned

compensation and -

(i) if the amount of first-mentioned is less than the amount of second-

mentioned compensation, he shall be liable to pay (in addition to the

first-mentioned compensation) only so much of the second-mentioned

compensation as is equal to the amount by which it exceeds the first-

mentioned compensation;

108

Section 141 of the Act 1988, this section corresponds to old section 92-B of the Act of 1939.

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(ii) If the amount of first-mentioned compensation is equal to or more than

the amount of the second-mentioned compensation, he shall not be liable

to pay the second-mentioned compensation.

Permanent Disablement: permanent disablement of a person109

shall be deemed to

have resulted from an accident of the nature referred to in sub-section (1) of section 140

if such person has suffered by reason of the accident, any injury or injuries involving:

(a) Permanent privation of the sight of either eye or the hearing of either ear, or

privation of any member or joint; or

(b) destruction or permanent impairing of the powers of any member or joint; or

(c) Permanent disfiguration of the head or face.

4.6.3. Applicability of certain claims under Act 8 of 1923

The provisions110

of this Chapter111

shall also apply to any claim for

compensation in respect of permanent disablement of any person under the Workmen's

Compensation Act, 1923 resulting from an accident of the nature referred to sub-

section (1) of section 140 and for this purpose, the said provisions shall, with necessary

modifications, be deemed to form part of that Act.112

(a) Liability without fault in certain cases.

Section 140 of the Act of 1988113

provides for liability to pay compensation on

the principle of no fault. The claimant under this section shall not be required to lead

and establish that the permanent disablement in respect of which the claim has been

made was due to any wrongful act, neglect or default of the owner (s) of the vehicle (s)

concerned or any other person. This is so because irrespective of any fault, the person

who had suffered a permanent disablement is to be given quick and effective temporary

relief.114

This payment is to be made without prejudice to the award of compensation in

a regular enquiry on a claim filed under Section 166 of the Act. The requirements under

109

Section 142 of the Act of 1988, the section corresponds to the old-section 92-C of the Act of 1939. 110

Id. 111

The Workmen's Compensation Act, 1923: 112

Section 143 of the Act of 1988, the section corresponds to section 92-D of the Act of 1939. 113

Section 140 of the Act of 1988 114

New India Assurance Company Ltd.v. Minquel Carrel (1987) 1 A.C.C. 524 at 530 (Bombay)

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the said section are only whether; a vehicle had been involved in an accident; a person

sustained permanent disablement as a result of such accident; and with whom the

vehicle was insured.

The provision for payment of prompt and immediate compensation in respect

of, no fault, under this section, is the spirit of social welfare legislation and should be

interpreted beneficially in favor of the claimant and in such a matter the technicalities

of law should not be allowed to have any upper hand, to undo and crush the spirit of

legislation for social justice, joinder or non-joinder or mis-joinder of parties is too

technical pleas to circumvent the spirit of such beneficial legislation. The very fact that

the legislature decided to get the amount paid even without ascertaining any fault prime

facie goes to show that the object is that the claimant should not be allowed to go high

and dry for long and he must get immediate relief.115

However, in view of the section

141 (3) the amount paid under this section is to be taken into consideration at the time

of any award in proceedings under section 166.

A statutory duty is cast on the Motor Accident claims Tribunal to decide the

applications under this section (section 14Q) of the Act as expeditiously as possible,116

because this is a special provision enacted by the legislature so that some interim relief

is granted to the claimants to enable them to survive. It is true that no time limit is fixed

by the section for disposal of the application under this section however the very

purpose for which the provision is enacted requires that such applications are given top

priority and are decided in the shortest possible period.117

The Constitutional position that obtains today in the country following the

decision in Olga Tellis v. Bombay Municipal Corporation118

is that right to livelihood

has to be considered a fundamental right embraced by Art.21 of the constitution. The

permanent disablement of an earning member of the family is likely to infringe right to

115

Narendra Singh V. Oriental Fire and General Insurance Co. Ltd. A.I.R. 1987 Rajasthan 77 at 79

and also Mohan Lal V. National Insurance Co. Ltd. A.I.R. 1987 Raj. 106 at 107-108; and New India

Assurance Company Ltd. V. Member, Motor Accident Claim Tribunal, (1988) 1 A.C.C. 285 116

Sapna Agarwal V. Mohinder Singh (1987) A.C.J. 826 (Delhi) at 827; Mahila Ramdei v. Nand

Kumar A.I.R.1988

M.P. 98 at 99; New India Assurance Company Ltd. v Phoolwati (1986) A.C.J. 106 (M.P.] at 108 New

India Assurance Company Ltd. v. Member Motor Accident Claim Tribunal, op.cit., 117

Sapna Agarwal v. Mohinder Singh 118

A.l.R. 1986 S.C.180

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livelihood. It was in this background in the mind that the Court held that the power to

act suo-motu under this section (section 140) has to be seen as constitutional necessity

because the reasonable procedure to dispose of a claim which arises under this section

would be when the court acts suo motu to exercise jurisdiction there under

destitution.119

The insurance company is also liable in proceedings under this section in same

manner as the owner is liable under Section 166. As a result, the owner and the

insurance company are jointly and severally liable for the claim under this section.120

4.6.4. Rehabilitative Nature of the Act: An Assessment

A careful study of the provisions discussed in the foregoing paragraphs and the

interpretation attached to them by the Courts proves, beyond doubt, that the provision

for the award of Rs.15,000 to the person who has been rendered permanently disabled

by one stroke of the motor vehicle, that too, as expeditiously as possible, indeed,

enables the claimant to survive for some time at least and pursue the proceedings for

compensation on the basis of regular enquiry before the Motor Accident Claims

Tribunal.

It is submitted that the amount of compensation under the section is too meagre

taking into consideration, the minimum cost of living, expenses for treatment before

permanent disablement is diagnosed and expenses to be incurred on initiating regular

proceedings for compensation on the basis of regular enquiry.

It is only the person with permanent disablement who is entitled for

compensation under this section. In our submission a person with temporary

disablement of the degree envisaged in section 142, too, should have been a subject of

compensation, because he, too, has to spend equally, may be more on his medical

treatment, for living and for litigation with all its known torments and hardships.

119

Mahila Ramdei v. Manad Kumar A.l.R.1988 M.P.98 at 100 120

Gattu Prabhakar v. Thummanpalli Barhmaiah, A.l.R. 1986 A.P. 173 at 176

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The study of the provisions of this Act makes it amply clear that it is neither

preventive nor rehabilitative in nature. Monetary compensation alone does not serve the

Purpose. Let the owner of the vehicle, insurance company and the State be partners in

providing some vocational training to the disabled taking his disability and capabilities

into Consideration and helping him to get some suitable employment. By such a

partnership, the disabled can be returned to the dignity of self-support and to gain

employment.

4.7. The Income Tax Act, 1961

The Act, inter-alia, makes provision for the deduction of some fixed amount

while computing the total income of totally blind or physically handicapped resident

persons.121

This provision was inserted for the first time, by the Finance Act, 1968,122

with effect from 1st April, 1969 for providing tax relief only to totally blind123

individuals resident in India. This relief was not extended to the other categories of

physical disability or mental disability. The relief under the new section was made

available for and from the assessment year 1969-70.124

The deduction under this section, for the assessment years 1969-70 and 1970-71

was fixed sum of Rs.2, 000 and that too only to a totally blind assessed. The scope of

this section has been subsequently125

widened to include other kinds of permanent

physical and mental disabilities.126

The amount of deduction available was increased to

Rs.5,000 from the assessment year 1971-72127

to Rs.10,000 from assessment year

121

Section 80$ (U) 122

Act No. 19 of 1968. 123

Section 80 (U) as it stood at the time of first insertion in 1968 read: "In computing the total income

of an individual being a resident, who is totally blind as at the end of the previous year, there shall be

allowed a deduction of a sum of two thousand rupees." 124

Section 30 of the Finance Act, 1968 read with items 10 and 20 of Third Schedule. 125

Vide Taxation Laws (Amendment) Act, 1970 w. e. f. 1st April, 1971. 126

The relevant part of the amended section 80(U) reads: In computing the total income of an

individual, being a resident who, at the end of the previous year, is suffering from a permanent

physical disability (including blindness) or is subject to mental retardation specified in the rules

made in this behalf by the Board, which is certified by a physician, a surgeon, an oculist or a

psychiatrist, as the case may be, working in Government hospital, and which has the effect of

reducing cons ideally such individual's capacity for normal work or engaged in a gainful

employment or occupation, there shall be allowed a sum of twenty thousand rupees ( forty thousand

rupees from the assessment year 1996-97) . 127

Taxation Laws (Amendment) Act, 1970 w.e.f. 01.04.1971

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1981-82128

and further increased to Rs .15,000 from assessment year 1988 - 89 129

It

was further increased to Rs.20,000 from assessment year 1990-91130

and Rs.40,000

from assessment year 1996-97.131

The guidelines have been issued in a departmental circular132

for the purpose of

availing deduction under section 80 (U). The question under consideration has been the

scope of the expression "permanent physical disability". The Central Board of Direct

Taxes, in consultation with the Ministry of Health, has identified the following

permanent physical disabilities for the purposes of relief under the section:

Bilateral paralysis of upper limbs; Paralysis of dominant upper limb; Other

paralysis of upper limb Bilateral paralysis of lower limb; Other paralysis of

lower limb; Paralysis of upper and lower limbs on same side; Paralysis of three

limbs; Paralysis of four limbs; Other paralysis of limbs; Other bilateral motor

impairment of upper limb; Other motor bilateral impairment of dominant upper

limb; Other motor impairment of upper limb; Other bilateral motor impairment

of lower limb; Other motor impairment of lower limb; Other motor impairment

of upper and lower limbs on same side; Other motor impairment involving three

or four limbs; Other motor impairment of limbs Transverse deficiency of arm

and shoulder, Transverse deficiency of forearm; Transverse deficiency of

corpus and first metacarpal; Transverse deficiency of thigh and pelvis;

Transverse deficiency of leg.

Besides the above, the following orthopedic problems should also be added:

(a) Cerebraelpalsy with athetosis

(b) Ankylosing spondylitis of both the hip joints

(c) Rheumatoid arthritis involving upper limbs reducing the functional capacity to

less than 30%.

(d) Mal united fractures resulting the functional disability of -above 50%

128

Finance (No.2) Act, 1980 w.e.f. 01.04.1981 129

Finance Act, 1987 w.e.f. 01.04.1988 130

Finance Act, 1989 w.e.f. 01.04.1990 131

Finance Act, 1995 w.e.f. 01.04.1996 132

Circular No. 246, dated 20 September, 1978: 1979 116 I.T.R. St. 26

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The concession has led to litigation as claims for deduction under this provision

have been made by persons with a physical disability of a relatively minor nature. The

Board received a large number of references on the ground that these guidelines laid in

the circular don‟t provide situation for the case of deaf and dumb persons and mentally

retarded persons etc. The matter was examined by the Board in consultation with the

Ministry of Health and Family Welfare. The Board pointed out that the earlier

circular133

was only illustrative and not conclusive and there could be other situations or

other categories or physical handicaps, such as deafness, dumbness and mental

retardation. It134

pointed out that the facts and circumstances of each case will have to

be gone into in determining whether the requirements of section 80 (U) are fully

satisfied. According to the later circular135

a physical disability shall be regarded as

permanent physical disability for the purposes of section 80 (U) "if it falls in anyone of

the following categories specified below, namely:

(a) Permanent physical disability of more than 50 percent in one limb; or

(b) Permanent physical disability of more than 60 percent in two or more limbs; or

(c) permanent deafness with hearing impairments of 71 decibels and above; or

(d) Permanent and total loss of voice.

Blindness: According to the Circular,136

blindness shall be regarded as a permanent

physical disability, if it is incurable and falls in anyone of the categories specified

below, namely:

Better Eye Worse Eye

6/60-9/60 or field of vision 110-20 3/60 to Nil

3/60 to 1/60 or Field of vision 100 F.C. at 1 foot to Nil

F.C. at 1 foot to Nil or Field of vision 100 F.C. at 1 foot to Nil or

Field of vision 100

Total absence of sight Total absence of sight

133

Ibid., at p. 321 134

Circular No. 375 dated 2 January, 1984: (1984) 146 I.T.R. St. 61. 135

Id. 136

Ibid., at p. 101

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Mental Retardation: According to Circular,137

the mental retardation shall be

regarded as a mental retardation if intelligent quotient is less than 50 on test with a

mean of 100 and a standard deviation of 15 such as the Wechsler scale.

4.7.1. Deduction in respect of medical treatment of handicapped dependents

Under138

this provision,139

deduction of a sum of Rs.15, 000 for and from the

assessment year 1993-94 shall be allowed in the case of individuals and Hindu

undivided families, resident in India, who incur expenditure on the medical treatment

(including nursing), training and rehabilitation of a person suffering from a permanent

physical disability (including blindness) or mental retardation as specified in the

rules140

made in this behalf. The deduction is to be allowed if the person suffering from

permanent physical disability or mental retardation is a relative of the individual or in

the case of a Hindu undivided family is a member of the joint family and is in either

case wholly dependent on the assessed. The deduction will be available only to those

assesses whose total income in respect of the previous year as computed before making

any deduction does not exceed rupees one lakh.

This deduction has always been in the statute book since I April, 1965141

except

for a short period between assessment years 1985-86 and 1990-91 (both inclusive). The

amount of this deduction, up to and including the assessment year 1981-82 was

RS.2400. Then, up to and including the assessment year 1990-91 it was Rs. 4800. It

was enhanced to RS.6000 for the assessment years 1991-92 and 1992-93 and Rs.12,

000 for the assessment year 1993-94; Rs.15, 000 for and from the assessment year

1994-95.

Medical proof for deduction, both under this section (Sec.80DD) and section 80

(1) is available only if it is certified by a physician, surgeon, an oculist or psychiatrist,

as the case may be, working in a Government hospital. Such certificate has to be

137

Id. 138

Section 80 DD. 139

Ibid. at p. 31 140

Rule 11 vide Circular No. 375, Supra, note 134. 141

Section 80-B up to assessment year 1967-68 thereafter, Section 80 D

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produced before the Assessing Officer in respect of the assessment year for which

deduction is claimed under either of these two sections.

4.8. The Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995

To provide recognition by the State142

of the rights of the persons with

disabilities to enjoy equality of opportunity and full participation in the national life, the

Indian parliament has passed the above said comprehensive legislation. This came as a

New Year gift to the disabled community, having been notified on January 1, 1996. It

covers areas like constitution of central and state Co-ordination committees,

appointment of commissioners for persons with disabilities, prevention, early detection,

intervention, habilitation and rehabilitation, education, employment and vocational

training, non-discrimination, licensing of institutions for the disabled, social security.

It also aims at promoting research, inter-alia, in the following areas:

(a) prevention of disability;

(b) promote aspects of rehabilitation;

(c) restorative aspects of rehabilitation;

(d) curative aspects of rehabilitation;

(e) educational rehabilitation;

(f) vocational and professional rehabilitation;

(g) social rehabilitation;

(h) psychological rehabilitation;

(i) development of assertive devices;

(j) job identification;

(k) on site modifications in offices, factories and firms;

(l) Any other aspect of rehabilitation that may improve the quality of life of

persons with disabilities.

The Act seems to have gone a step further when it proposes to assign the

central, State and local bodies to promote facilities for prevention of occurrence of

142

Act NO.1 of 1996.

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physical and mental handicaps. This would certainly be viewed as a welcome initiative

as compared to the efforts made earlier only after a person had become disabled. This

indeed is in keeping with the philosophy of a utilitarian state.

A special emphasis has also been given to the education of the disabled. The

concept of 'Integrated Education Programme would make anyone having a concern for

the disabled happy. The Act rightly proposes that education appropriate the part-time,

special part-time and non-formal education by to the disabled be provided in the most

environments. Provision is also to be made for utilizing the manpower in rural areas and

giving them appropriate orientation. There can be no two opinions about the realization

of the needs of the disabled from the rural areas where an overwhelming majority of

Indian population lives. The legislators deserve all the praise for such a realization as far

as the educational needs of the disabled from rural areas are concerned.

Another very significant aspect of rehabilitation of the disabled, i.e., their

employment, too, has been sufficiently recognized by the Act. A glance at the

provisions of the Act shows that the government intends to pursue this matter with

more zeal and commitment now than ever before. The need, nay, the right of the

disabled persons to have adequate means of livelihood through education is most

crucial. This would go a long way in ameliorating the conditions of the disabled and

ensuring their social security and dignity too.

Another provision worth-noting the Draft Bill143

was that every worker in

sheltered employment shall enjoy the "same rights as any other worker in India " and

"shall particularly be covered by the Industrial Disputes Act, 1947; The Minimum

Wages Act. 1948; Workmen's Compensation Act,1923 Employees' State Insurance Act,

1948 and such other legislation as is applicable to ordinary workers. However, such a

provision is conspicuously missing in the text of the Act.

Keeping pace with the theme of the International Year for the Disabled Persons-

1981, the Act provides for recognition by the State of the rights of persons with

disabilities "to enjoy equality of opportunity and full participation in national life." One

143

The Act, when in the form of the Draft Bill (1994): “The Persons with Disabilities (Security and

Rehabilitation) Bill prepared and proposed by Ministry of Welfare, Government of India.

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of the major hindrances in providing rehabilitation services to the disabled is the lack of

uniform definition of the disability. In an attempt to overcome this problem, the Draft

had sought to define disability. It said that a person with disability is one "who is

unable to ensure by himself, wholly or partly, the necessities of a normal individual or

social life, including work, as a result of deficiency, whether congenital or not, in his

physical or mental capabilities and includes a person (i) who is blind or who is a person

with low vision, (ii) who is deaf, or (iii) who has a locomotors disability on account of

orthopedic or neurological; or (iv) who is mentally retarded." But the Act does not

define disability in such terms instead, it‟s simply supplies a list of various categories

of the disabled while defining the term disability.

The government seems to be taking the problems of the disabled seriously. It

becomes evident from the manner in which a high-level central co-ordination committee

for the promotion of security, welfare and rehabilitation of persons with disabilities, with;

the Union Welfare Minister as the chairperson, is to be set up. That „only the wearer

knows where the shoe pinches' is not of proverbial significance only but of practical

importance also. It is with this lesson in mind, that it is suggested that persons with

various disabilities be associated with these committees while formulating the

rehabilitation schemes for the disabled.

It is heartening to note that the subject to the provisions of the Act, the'. National

Coordination Committee shall serve as the national focal point on disability matters and

"facilitate the continuous evolution of a comprehensive national approach in consonance

with the World Programme of Action covering persons with disability.” Thus it seems

that the intention of the legislators is to bring efforts at the national level in line with

those being made at the international level. In fact, the Act has been stimulated by the

declaration at a meeting of ESCAP to launch the Asia and Pacific Decade for the

Disabled Persons (1993-2002) held in Beijing (1-5 Dec,1992) .

The social security scheme promised by the Act also looks quite attractive. By

applying it seriously, the genuine kind of rehabilitation of the disabled would be made

possible. The Act would enable the disabled in India, to enjoy a status almost similar to

their counter-parts in Europe and America.

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Another remarkable feature of the Act is that free education is to be provided to

the disabled till the age of 18, although one wishes that they had been provided free

education till the time they liked to study. Al though for the purpose of integrating the

disabled children into society, they would study in the normal schools, the needs of those

needing special education in special schools (with vocational training facilities) has not

been overlooked. Provision of part-time classes for those who cannot attend the school

for whole of the time, functional literacy and the utilization of electronic and other media

for the benefit of the disabled shows that the government is keeping pace with the needs

and opportunities of the time.

A proper emphasis has also been laid on research, an area which had been sadly

neglected earlier not only by India but some other countries also. There is also provision

for the much desired man-power-development.

That the law-makers have perceived the problems of the disabled to a very large

extent becomes evident from the way they have studied their problems in minute details

and sought to provide appropriate solutions. For example, they have promised to remove

architectural barriers· plaguing the disabled from schools, colleges and other institutions.

Keeping in mind their right to be mobile, legislators have expressed a desire that there be

no discrimination in transport and inbuilt environment. What is more, they are thinking of

installation of auditory signals at traffic lights on the public roads for the benefit of

persons with visual handicapped and causing curb cuts to be made in pavements for the

easy access of wheel-chair users. There is also talk of developing appropriate symbols for

disability, and warning signals at appropriate places, ramps in public buildings, adapt ion

of toilets for wheel- chair users, Braille symbols and auditory signals in elevators and

lifts, ramps in hospitals, primary health centers, and other medical care and other

rehabilitation institutions. This, indeed, is an idea that would help the disabled to get

rehabilitated physically and then enjoy the fruits thereof. What, after all, was the fun of

doing physio-therapy and having aids and appliances if one could not go out and mingle

in society, to feel it and be part of it?

One must appreciate the legislators of India who have shown enormous insight and

political will in enacting this piece of legislation. There is hardly any aspect of disability

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and the disabled persons which has not been foreseen by them. When, how and what use

the government agencies make of the provisions of this Act would be known in 'the times

to come. One only wishes that, as has become the fate of most of the promises made in

the past, there are no more bureaucratic bottlenecks, red-tapism, misappropriation of

funds allotted for the welfare of the disabled and lack of awareness at all levels. And then

there is no greater sin than giving a false hope to someone, especially the disabled. If the

programmes and welfare schemes to be launched within the framework of this legislation

are delayed, it would be yet another case of 'justice delayed is justice denied'. At the

moment, the expectations of the disabled have risen high and they shall feel uneasy and

cheated if their hopes fall to the ground with a thud. One prays that it does not happen

and the Act is implemented in letter and spirit.